In United States v. Williams, Case No. 20-14187 (Feb. 15, 2022) (Wilson, Luck, Lagoa), the Court affirmed the denial of Mr. Williams’s motion for a sentence reduction under § 404 of the First Step Act, finding that he was not sentenced for a covered offense.

Mr. Williams pleaded guilty to one count of distribution of unspecified amounts of crack cocaine within 1,000 feet of a housing facility, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). He stipulated that the drug quantity attributable to him for purposes of calculating his guideline range was more than 500mg but less than 1g of crack cocaine.  His base offense level was calculated using the career offender enhancement and resulted in a guideline imprisonment range of 188 to 235 months.  His statutory penalty was 1 to 40 years’ imprisonment and at least 6 years of supervised release, pursuant to 21 U.S.C. §§ 841(b)(1)(C) and 860(a).  He was sentenced to 200 months’ imprisonment followed by 6 years of supervised release.

On appeal of the district court’s denial of his motion to reduce his sentence based on the First Step Act, Mr. Williams argued that, because his 21 U.S.C. § 860(a) conviction was a “covered offense” under the First Step Act given that the Fair Sentencing Act modified § 860(a) by modifying 21 U.S.C. § 841(b), the district court erred in finding him ineligible for a sentence reduction.  The Court disagreed.

Citing to the Supreme Court’s decision in Terry and its own opinion in Jones, the Court rejected Mr. Williams’s argument that § 860(a) incorporates § 841(b) entirely.  Instead, the Court reasoned that whether an element’s offenses are spread across multiple sections or subsections of the U.S. Code is not relevant; the proper inquiry is whether the offense–defined by its elements–was modified by the Fair Sentencing Act. Applying the Supreme Court’s reasoning in Terry to § 860(a), the Court held that Mr. Williams’s conviction under §§ 841(b)(1)(C) and 860(a) was not a covered offense under § 404 because the penalty for his offense was set by § 841(b)(1)(C), which the Fair Sentencing Act did not alter.  Additionally, none of the distinctions between the offense defined by § 841(a) and (b)(1)(C) and Mr. Williams’s offense were affected by the Fair Sentencing Act nor central to the holding in Terry.

The Court further bolstered the viability of its opinion in Jones post-Terry.  It noted that the there is no indication that Jones’s instructions on determining a “covered offense” are at odds with Terry, especially considering that Jones did not expressly resolve whether the Fair Sentencing Act also modified § 841(b)(1)(C).  The language in Jones indicating that a defendant could have been sentenced for a covered offense if his statutory penalties remained the same now does not mean that Mr. Williams, whose statutory penalties were not modified, is indeed eligible for a reduction.